(2018) lpelr-46251(ca)
TRANSCRIPT
AJOKU v. OHIRI & ORS
CITATION: (2018) LPELR-46251(CA)
In the Court of AppealIn the Owerri Judicial Division
Holden at Owerri
ON FRIDAY, 23RD NOVEMBER, 2018Suit No: CA/OW/109/2009
Before Their Lordships:
THERESA NGOLIKA ORJI-ABADUA Justice, Court of AppealITA GEORGE MBABA Justice, Court of AppealIBRAHIM ALI ANDENYANGTSO Justice, Court of Appeal
BetweenBARR. OGECHUKWU AJOKU - Appellant(s)
And1. FRANK OHIRI2. CHRISTOPHER OHIRI(For themselves and on behalf of the Family ofFrank Ohiri of MpamaEgbu)3. COMMISSIONER OF LANDS, SURVEY & URBANPLANNING4. UNIPETROL NIGERIA PLC5. THE GOVERNOR OF IMO STATE
- Respondent(s)
RATIO DECIDENDI1. ACTION - STATUTE BARRED ACTION: How to determine whether an action is statute barred
"It is trite that it is the writ of summons and the statement of claim that are used in determining or considering the issue of statutebar or statute of limitation as has been decided in EGBE VS. ADEFARASIN (1987) 1 NWLR (Pt. 47)."Per ANDENYANGTSO, J.C.A. (P.23, Paras. A-B) - read in context
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2. LIMITATION LAW - LIMITATION OF ACTION: The general rule as regards limitation of action"In refusing and dismissing the preliminary objection by the 1st Defendant, the trial Court had said:"I have considered the processes placed before this Court and the submissions of the learned Counsel on either side and hold thatin so far as the grounds for the preliminary objection are based on the averments of the 1st Defendant in his Statement ofDefence and these grounds not being apparent on the Statement of Claim, which is the only process that can be considered at thisstage of exchange of pleading..., the proof of which ought to be treated during the hearing by evidence. The averments that theSuit is statute barred and issue of estoppel were raised by the 1st Defendant and in the absence of an express admission of thefacts upon which they are raised, the parties are said to have joined issues on them, which issues can only be resolved at the trialafter evidence is adduced. See the Cases of UBN PlcVs BCC Plc (2004) AFWLR (Pt.272) 434; A.G. Kwara State Vs Olawole (1993) 1NWLR (Pt.272) 645..."Furthermore, the Issue of fraud raised by the Plaintiffs in their statement of Claim and denied by the 1st Defendant in hisStatement (of defence) is another issue to be resolved after evidence is laid (sic) as same would be considered alongside thelimitation of time raised by the 1st Defendant. Finally this Court holds that the issues raised in the Notice of Preliminary Objectioncan only be resolved after evidence is laid (sic) and not at this stage." See pages 31 and 32 of the Records of Appeal.I am surprised that learned Counsel for the Appellant, in this appeal tried to fault that sound reasoning of the trial Court, without,first of all, faulting the above findings of the learned trial Court, that the grounds of the Preliminary objection were founded onfacts pleaded by the Appellant in his Statement of Defence, not in the statement of claim!Appellant did not also deny the findings that the 1st and 2nd Respondents had raised issue of fraud in their pleadings, to which he(Appellant) had joined issues, requiring evidence to be led at the trial, before the trial Court could decide, one way or the other.Apparently, Appellant (as 1st Defendant) had jumped the gun, and stampeded the trial Court to determine the Suit, prematurely,based on the facts in his Statement of defence, without hearing the evidence in the case, as per the facts pleaded by the Plaintiffs,to which he (Appellant) had joined issues. Of course, that could not be done, and the learned trial Court took time to explain andeducate the Appellant on why that could not be done. Rather than learn and submit to the dictates of the law, Appellant came tothis Court to argue, still on the basis of facts pleaded in his statement of defence on which evidence is yet to be led, for us toinvoke the alleged limitation bar.Of course, in law, a finding of the Court not challenged is deemed admitted and remains binding and conclusive. See Ebemighe VsChi (2011 )14 NWLR (Pt.1268) 530; CPC Vs INEC (2011)18 NWLR (Pt.1279)493; Nmanumeihe V Njemanze (2016) LPELR - 40212(CA)The law was rightly stated by the learned trial Judge (now Chief Judge of Imo State) that the only document a Court is entitled tolook at, when issue of statute bar or limitation law is raised, is the writ of summons and/or Statement of Claim filed by the Plaintiff.See the case of Egbe Vs Adefarasin (1987) 1 NWLR (Pt.47) 1, wherein the Supreme Court held: "How does one determine theperiod of limitation? The answer is simply by looking at the writ of summons and the Statement of Claim alleging when the wrongwas committed which gave the Plaintiff a cause of action and by comparing that date with the date on which the writ of summonswas filed." This can be done without taking oral evidence from witnesses."See also Ibrahim Vs Lawal & Ors (2015) LPELR - 24736 (SC); Aremo II Vs Adekanye & Ors (2004) LPELR - 544 (SC).The fact, whether or not a Suit is statute barred is never considered on the facts pleaded by the Defendant in his statement ofdefence or in his motion or address of Counsel for that purpose, except those facts are expressly admitted by the Plaintiff, toindicate the time the cause of action accrued. See Moyosore Vs Gov. of Kwara State & Ors (2012) 5 NWLR (Pt.293) 242; Nduka andOrs Vs Agbai & Ors (2018) LPELR - 44270 CA. In the recent case of First Bank of Nigeria Plc Vs Standard Polyplastic Industries Ltd(2018) LPELR - 44081 CA, this Court held:?"The Courts normally rely on the Writ of Summons and/or Statement of Claim (Claimant's pleading) to determine whether or not aSuit is statute barred, and it does this by reference to when the cause of action arose (as pleaded by the claimant) and the timethe Claimant commenced action to claim his right. See Ogboru Vs Uduaghan (2012) 11 NWLR (Pt.1311) 357; Odubeko Vs Fowler(1993) 7 NWLR (Pt.308) 637.I have already reproduced the reliefs sought in the statement of claim. I have also perused, closely, the Writ of Summons andClaims by the 1st and 2nd Respondents. I cannot see where they pleaded 1982 as the date the cause of action accrued in thiscase. The paragraph 8 of the pleadings of the Respondents, which Appellant sought to rely and capitalize on appears to rathershow how the 3rd Respondent took a lease of the land in dispute from the 1st Respondent in 1982, for 10 years - 1982 to 1992;and how he later discovered that the 1st Appellant, who was engaged by plaintiff in the matter defrauded him (plaintiff) in drawingup the lease documents, claiming the land as his (Appellant's). That upon discovery of this fraud effort had been made to causethe 3rd Respondent, (Unipetrol) to know of the fraud by Appellant and correct the wrong.Appellant, a lawyer, sought to invoke the rule of statute of limitation to block the trial. I do not think that is proper.?Of course, even where a claim of limitation law is successfully pleaded, the same cannot be sustained, where fraud is alleged bythe Plaintiff against the person seeking to rely on the plea of statute bar or limitation law. The Court would have to take evidence,before it could come to a proper decision in the circumstance. In the case of Nwankwo & Anor Vs Nwankwo (2017) LPELR - 42832CA, my lord Ogunwumiju said:"Let us assume that the Respondent was a trustee of the Estate in respect of specific property. The circumstances under which thestatute of limitation would apply would be where there has been (sic) concealment of fraud, or if the beneficiaries were not awareof the fraud, then time does not begin to run against them until the beneficiaries of the trust are aware of the fraud."I agree with the trial Court, that this is a clear case that the plea of statute bar cannot be invoked or sustained, in the absence ofevidence, since the allegation of 1982, as the date/year the cause of action accrued, was the idea or conjecture of Appellant, notsuggested or admitted by the 1st and 2nd Respondents (Plaintiffs), in their pleadings.The law is also well settled that a plea of statute of limitation cannot apply where the injury complained of is a continuing one, orwhere the statutory exceptions apply, such as fraud, deliberate concealment by the defendant, or mistake.See Nwankwo Vs Nwankwo (2017) LPELR - 4282; Aremo II Vs Adekanye (2004) ALL FWLR (Pt.2240) 2113; Abiodun Vs A.G. Fed.(2007) 15 NWLR (Pt.1057) 359.It is also difficult, in my view, to contemplate a situation where a plea of statute bar can apply against a person, who leased hisland for a term of years, in which case the right of reversion or radical title is expected to remain in the lessor, as long as the leasehold subsists. See Sterling Plantation and Processing Co. Ltd Vs Agbosu & Ors (2013) LPELR - 22146 CA; Archibong & Ors Vs Ita &Ors (2004) LPELR - 535 (SC)."Per MBABA, J.C.A. (Pp. 13-20, Paras. E-D) - read in context
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3. PRACTICE AND PROCEDURE - PRELIMINARY OBJECTION: Effect of non-compliance with the rules of Court when raising apreliminary objection"It can be seen that the 1st and 2nd Respondents' Issue one is in form of a protest or an objection to the appeal, that failure toenter it within time is fatal.The Respondent had filed preliminary objection on 31/8/2015 against the hearing of the appeal, as envisaged by Order 10 Rules(1) of the Court of Appeal Rules, 2016, which state:1) A Respondent, intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three cleardays notice thereof before the hearing, setting out the grounds of objection and shall file such notice together with twenty copiesthereof with the registry within the same time. The Respondents did not, however, call our attention to the said preliminaryobjection at the hearing of this appeal, and did not indicate the said preliminary objection in the Respondents brief, but ratherargued it as if the same was an Issue in the appeal. They filed no cross appeal, to justify the formulation of the strange issue fordetermination as (in issue one). The Respondents cannot raise the alleged issue one, as the same is outside the grounds of theappeal/issue formulated by the Appellant, for determination of the appeal. The law remains, that, a"Respondent has no room to raise an issue for determination of appeal outside the grounds of appeal formulated by Appellant,except, of course, he (Respondent) has cross appealed, or raised a Respondent's notice on the strange or fresh issue heproposed." See Duru Vs Duru (2016) LPELR 40444 CA; Emesonye Vs the State (2016) LPELR - 40549 CA. The said issue 1 by theRespondents is hereby struck out, for incompetence. And in the circumstances that the preliminary objection filed on 31/8/15 hasnot been argued at the hearing of this appeal, the same is deemed abandoned and is struck out. See C.C of Appeal Benue VsTsegba & Ors (2017) LPELR 44027 (CA); Agbareh & Anor Vs Mimra & Ors (2008) LPELR - 4321 (SC)."Per MBABA, J.C.A. (Pp. 6-7,Paras. A-E) - read in context
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ITA GEORGE MBABA, J.C.A. (Delivering the Leading
Judgment): This appeal is against the decision of the Imo
State High Court, in Suit No. HOW/166/2001, delivered on
3/3/2006 by Hon. Justice, P.O. Nnadi J. (as he then was,
now C.J. of Imo State) wherein the trial Court ruled in
favour of the Claimants in respect of the preliminary
objection raised by 1st Defendant, challenging the
competence of the trial Court to entertain the suit of the
claimants.
At the trial Court, the Claimants had sought the following
reliefs (as per their statement of claim):
a) Declaration that the Plaintiffs are entitled to the
statutory right of occupancy in respect of the piece or
parcel of land known as and called OVORO AMA
UMUOFOR on part of which situates the Unipetrol
Service Station. UmuoforEgbu along Owerri/Umuahia
Road and which is more particularly described and
delineated in survey Plain No. ECIS/IDO7/83, covering
an area of 7299 743 square metres within jurisdiction
and verged Green in the dispute plan No.
MED/005/2001, filed along with this statement of
claim.
b) Declaration that the piece or parcel of land
covered
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by statutory certificate of occupancy registered as
No.34 at page 34 in Volume 50 of the lands Registry
in the office at Owerri, measuring an area of
3070.619 square metres and more particularly
descr ibed and del ineated in survey p lan
No.MEC/9543/78 is not and does not relate to the
land, where-on the Unipetrol Service Station is
situate at Umuofor, Egbu along Owerri/Umuahia
Road, within jurisdiction.
c) Declaration that it is unlawful and unprofessional
for the 1st defendant to purport to grant a sublease to
the 3rd defendant in respect of the piece or parcel of
land whereon situate the Unipetrol Service Station,
Umuofor, Egbu, a land which the 1st defendant
knows, belongs to his Client (plaintiff’s Late father)
over which the 1st defendant’s said client had
retained the 1st defendant to act for him in relation
to the execution of a sub-lease between the plaintiffs’
late father and the 3rd defendant.
d) Declaration that any transaction and/or sublease
entered into between the 1st defendant and the 3rd
defendant in respect of the land whereon situates the
Unipetrol Service Station at Umuofor, Egbu, along
Owerri/Umuahia Road, in pursuance of or purporting
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same to be in pursuance of the certificate of
occupancy registered as No. 34 at page 34 in Volume
50 of the lands Registry in the Office at Owerri, is
null, void and of no effect whatsoever.
e) An order of Court, compelling the 1st defendant to
pay over to the plaintiffs the total sum of about of
(sic) N200,000.00 being monies and financial benefits
unlawfully paid to him by the 3rd defendant in
respect of the land whereon situates the aforesaid
Unipetrol Service/filling station.
f) Perpetual injunction restraining the 3rd defendant
by itself, servants, agents, privies and/or any person
claiming through or under it, from continuing to pay
any monies benefits and/or consideration to the 1st
defendant on account of its use and occupation of the
said land whereon situates the Unipetrol Service
Station, Umuofor, Egbu along Owerri/Umuahia Road,
within jurisdiction.
ALTERNATIVE TO (5) ABOVE
g) Perpetual injunction restraining the 3rd defendant
by itself, servants, agents, privies and/or any person
claiming, through or under them, from continuing to
run their Unipetrol Service Station of the Plaintiffs
piece or parcel of land known as and
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cal led OVORO AMA UMUOFOR, s i tuate at
UmuoforEgbu along Owerri/Umuahia Road, more
particularly described in survey Plan No. MFD.
005/2001 filed along with this statement of claim.”
See pages 8-9 of the Records of Appeal.
After filing their statement of defence, the 1st Defendant
had brought a preliminary objection on 24/2/2002 to
challenge the competence of the suit on grounds, inter alia,
that the suit was statute barred, having been brought at the
expiration of 10 years, in violation of the limitation law.
Upon hearing the preliminary objection, the learned trial
Court dismissed the same, saying that evidence needed to
be led in order to determine whether or not the suit was
statute barred. This appeal is against that Ruling of the
trial Court dismissing the preliminary objection. The trial
Court had held on page 32 of the Records, as follow:
…The averments that the suit is statute barred and
issue of estoppel, were raised by the 1st Defendant
and in the absence of an express admission of the
facts upon which they are raised, the parties are said
to have joined issues on them, which issues can only
be
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resolved at the trial after evidence is adduced…
Furthermore, the issue of fraud raised by the
plaintiffs in their statement of claim and denied by
the 1st Defendant in his statement, is another issue
to be resolved after evidence is laid (sic) as same
would be considered alongside the limitation of time
raised by the 1st Defendant. Finally, this Court holds
that the issues raised in the notice of preliminary
objection can only be resolved after evidence is laid
(sic) and not at this stage.”
Appellant filed Amended Notice of Appeal on 3/3/16, with
the leave of this Court, as well as amended Brief of
argument, wherein he donated a lone issue for the
determination of the appeal, namely:
Whether the Respondents’ suit in the Court below
ought to be struck out for being statute barred?
The 1st and 2nd Respondents’ brief was filed on 31/8/2015
and was deemed duly filed and served, wherein they raised
two issues for the determination of the appeal, as follows:
a) Whether the failure to enter this appeal within
time is not fatal?
b) Whether the lower Court was not right when it
refused the notice of preliminary objection.
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The other Respondents filed no brief and did not take part
in the appeal.
It can be seen that the 1st and 2nd Respondents’ Issue one
is in form of a protest or an objection to the appeal, that
failure to enter it within time is fatal.
The Respondent had filed preliminary objection on
31/8/2015 against the hearing of the appeal, as envisaged
by Order 10 Rules (1) of the Court of Appeal Rules, 2016,
which state:
1) A Respondent, intending to rely upon a preliminary
objection to the hearing of the appeal, shall give the
Appellant three clear days notice thereof before the
hearing, setting out the grounds of objection and
shall file such notice together with twenty copies
thereof with the registry within the same time.
The Respondents did not, however, call our attention to the
said preliminary objection at the hearing of this appeal, and
did not indicate the said preliminary objection in the
Respondents brief, but rather argued it as if the same was
an Issue in the appeal. They filed no cross appeal, to justify
the formulation of the strange issue for determination as (in
issue one). The Respondents cannot raise the alleged issue
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one, as the same is outside the grounds of the appeal/issue
formulated by the Appellant, for determination of the
appeal. The law remains, that, a
“Respondent has no room to raise an issue for
determination of appeal outside the grounds of
appeal formulated by Appellant, except, of course, he
(Respondent) has cross appealed, or raised a
Respondent’s notice on the strange or fresh issue he
proposed.” See Duru Vs Duru (2016) LPELR 40444
CA; Emesonye Vs the State (2016) LPELR – 40549 CA.
The said issue 1 by the Respondents is hereby struck out,
for incompetence. And in the circumstances that the
preliminary objection filed on 31/8/15 has not been argued
at the hearing of this appeal, the same is deemed
abandoned and is struck out. See C.C of Appeal Benue Vs
Tsegba & Ors (2017) LPELR 44027 (CA); Agbareh &
Anor Vs Mimra & Ors (2008) LPELR – 4321 (SC).
Arguing the lone issue, Counsel for Appellants,
Chukwuemeka Nnadi Esq (who settled the brief) said that
the suit ought to have been struck out, without much ado,
for being statute barred, without any need to call evidence.
Counsel said that the law is settled that, where a suit is
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commenced outside the time limited by statute, the same
cannot be entertained by the Court and ought to be struck
out. He relied on the cases of Egbe Vs Adefarasin (1987)
1 NWLR (Pt.47)1; Eboigbe Vs NNPC (1994) 5 NWLR
(Pt. 347) 609; Adekoya Vs F.H.A. (2008)11 NWLR
(Pt.1099) 539; Sanda Vs Kukawa L.G.A. (1991)2
NWLR (Pt. 174) 379.
Counsel said that the time provided within which a plaintiff
may commence an action in the High Court of Imo State in
respect of recovery of land is 10 (ten) years, from the time
the cause of action arose. He relied on Section 3 of Imo
State Limitation Law 1994, which says:
“No action shall be brought by any person to recover
any land after the expiration of ten years from the
date on which the right of action accrued to him or if
it first accrued to some person through whom he
claims, to that person.”
Counsel said that the 1st and 2nd Respondents brought the
Suit to recover possession of land, outside the time limited
by the above law; that the trial Court should not have
entertained the Suit, the action having not commenced
within 10 years of the accrual of the cause of action; that a
cause of action is said to accrue or arise
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at the time a breach or any act has accrued which would
warrant the person, adversely, affected to take an action in
Court. Counsel relied on the case of Petroleum Training
Institute Vs Matthew & Ors (2011) LPELR – 484 CA.
He said that 1st and 2nd Respondents’ cause of action, as
set out in their claims, arose in 1982 as all the alleged facts
could have enabled the 1st and 2nd Respondent to sue,
arose or accrued in 1982; that it was their contention that
Unipetrol approached their (1st and 2nd Respondents’)
predecessor in title, to build a petrol filling station on the
land, the subject matter of the Suit, in 1982, where upon
the aforesaid predecessor in title appointed the Appellant
herein to perfect a lease between the 1st and 2nd
Respondents’ predecessor in title and the said Unipetrol;
that instead of carrying out his instructions as aforesaid,
Appellant pushed forward his (Appellant’s) entirely
different Certificate of Occupancy, registered in 1982, and
purporting same to be in respect of the land in dispute, on
the basis of which the Appellant took over possession of the
land by putting the
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Unipetrol in possession thereof, as Appellant’s tenant, vide
a lease hold between himself (Appellant) and Unipetrol.
Counsel referred us to paragraphs 8 and 11 of the
Respondents’ statement of claim on page 6 of the Records
of Appeal.
Counsel added that implicit in the Respondents aforesaid
averments, is an allegation of fraud, purportedly
perpetuated by the Appellant, as the Respondents alleged
that Appellant obtained possession of the property by fraud
and continued to prevaricate and conceal the true position
– paragraph 10 of the statement of claim.
Counsel admitted that where allegation of fraud is made in
a challenge of jurisdiction, on grounds of limitation law,
that the limitation law will not operate or run against the
party allegedly defrauded, until that party discovers the
fraud or would reasonably be taken to have discovered it.
He submitted that time begins to run against a plaintiff,
from the moment he discovers the alleged fraud or would
have been deemed to have discovered it, relying on the
case of Anwadike Vs Administrator of Anambra State
& 2 Ors (1997) 7 NWLR (Pt. 460) 316 at 334; Bull
Coal Mining Co.
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Vs Patrick Hill Osborne & Anor. (1899) AC 351 at 363;
Arowolo Vs Ifabiyi (2002) 4 NWLR (Pt.757) 365 at 368
– 369.
Counsel said that when 1st and 2nd Respondents
discovered the alleged fraud, they wrote a letter, dated
22/1/1990, urging Unipetrol not to deal with Appellant as
the owner of the property; that Unipetrol wrote back to
Respondents on 21/2/1990 on the matter. Thus, that
Respondents were aware of the alleged fraud by 21/1/90.
He relied on paragraphs 13 and 14 of the Statement of
Claim.
Counsel said the 1st and 2nd Respondents commenced this
action on 3/4/2001, 11 years after they must have been
firmly fixed with the knowledge of the aforementioned facts
which gave rise to their purported cause of action; that all
that the trial Court needed to do was to perform a simple
calculation from at least 21st February 1990 to 3rd April
2001, when the Suit was commenced, to come to the stout
conclusion that the Suit was statute barred and liable to be
struck out, without taking any evidence. He relied on
KOFA & Anor Vs KAITA & ORS (2011) LPELR – 8952
(CA); Egbe Vs Adefarasin (1987) 1 NWLR (Pt.47) 1;
Ajayi Vs Mil Adm. Of Ondo State (1997) 5 NWLR
(Pt.504) NWLR 237
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at 254; Ofili Vs CSC (2008) NWLR (Pt.1071) 238; Mil.
Adm. Of Ekiti State Vs Aladeyelu (2007) 14 NWLR
(Pt1055) 619; WAPC Plc Vs Adeyeri (2003) 12 NWLR
(Pt.835) 517.
Counsel urged us to allow the appeal, noting that the
reason which 1st and 2nd Respondents gave, for not taking
out the action on time, was that they were ‘disorganized’ by
the death of one of their brothers; he said that that is no
ground to circumvent the limitation law. He relied on
Akibu Vs Azeez (2003) 5 NWLR (Pt.814) 643. He added
that limitation law inures, as a matter of public policy, in
order to preclude a plaintiff from bringing up actions,
which are blighted by the passage of time. He relied on
Bauchi State Govt. Vs NPC & Anor (2014) LPELR –
23729 CA.
Responding, I.K. Ujah Esq, (who settled the brief
Respondents), on the Issue, whether the Lower Court was
right to refuse the notice of preliminary objection,
answered in the affirmative. He said that the law is settled,
beyond peradventure, that in the determination of whether
a Suit is statute barred or not, the only process which
should be considered is the Writ of Summons and the
Statement of
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Claim. He relied on the case of Egbe Vs Adefarasin
(supra). He said that, contrary to the submission of
Appellant’s Counsel, the cause of action did not accrue in
1982, as that was not pleaded by Plaintiffs. He referred us
to paragraph 8 of the Statement of Claim (pages 5 to 9 of
the Records) as to the pleadings of the Plaintiffs. Counsel
said that Appellant’s Motion on Notice, dated 24/1/2002
was not founded on the paragraph 8 of the Statement of
Claim, but rather on facts averred in the statement of
defence – pages 10 – 11 of the Records of Appeal. Counsel
submitted that the trial Court was right to refuse the
consideration of the preliminary objection on the basis of
facts pleaded in the statement of defence. He relied, again,
on the case of Egbe Vs Adefarasin (1987) 1 NWLR
(Pt.47) 1. He urged us to dismiss the appeal.
RESOLUTION OF THE ISSUE
In refusing and dismissing the preliminary objection by the
1st Defendant, the trial Court had said:
“I have considered the processes placed before this
Court and the submissions of the learned Counsel on
either side and hold that in so far as the grounds for
the preliminary objection are based
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on the averments of the 1st Defendant in his
Statement of Defence and these grounds not being
apparent on the Statement of Claim, which is the only
process that can be considered at this stage of
exchange of pleading…, the proof of which ought to
be treated during the hearing by evidence. The
averments that the Suit is statute barred and issue of
estoppel were raised by the 1st Defendant and in the
absence of an express admission of the facts upon
which they are raised, the parties are said to have
joined issues on them, which issues can only be
resolved at the trial after evidence is adduced. See
the Cases of UBN PlcVs BCC Plc (2004) AFWLR
(Pt.272) 434; A.G. Kwara State Vs Olawole (1993) 1
NWLR (Pt.272) 645…”
Furthermore, the Issue of fraud raised by the
Plaintiffs in their statement of Claim and denied by
the 1st Defendant in his Statement (of defence) is
another issue to be resolved after evidence is laid
(sic) as same would be considered alongside the
limitation of time raised by the 1st Defendant. Finally
this Court holds that the issues raised in the Notice of
Preliminary Objection can only be resolved after
evidence is laid
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(sic) and not at this stage.” See pages 31 and 32 of
the Records of Appeal.
I am surprised that learned Counsel for the Appellant, in
this appeal tried to fault that sound reasoning of the trial
Court, without, first of all, faulting the above findings of the
learned trial Court, that the grounds of the Preliminary
objection were founded on facts pleaded by the Appellant in
his Statement of Defence, not in the statement of claim!
Appellant did not also deny the findings that the 1st and
2nd Respondents had raised issue of fraud in their
pleadings, to which he (Appellant) had joined issues,
requiring evidence to be led at the trial, before the trial
Court could decide, one way or the other. Apparently,
Appellant (as 1st Defendant) had jumped the gun, and
stampeded the trial Court to determine the Suit,
prematurely, based on the facts in his Statement of
defence, without hearing the evidence in the case, as per
the facts pleaded by the Plaintiffs, to which he (Appellant)
had joined issues. Of course, that could not be done, and
the learned trial Court took time to explain and educate the
Appellant on why that could not be done. Rather
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than learn and submit to the dictates of the law, Appellant
came to this Court to argue, still on the basis of facts
pleaded in his statement of defence on which evidence is
yet to be led, for us to invoke the alleged limitation bar.
Of course, in law, a finding of the Court not challenged is
deemed admitted and remains binding and conclusive. See
Ebemighe Vs Chi (2011 )14 NWLR (Pt.1268) 530; CPC
Vs INEC (2011)18 NWLR (Pt.1279)493; Nmanumeihe
V Njemanze(2016) LPELR – 40212 (CA)
The law was rightly stated by the learned trial Judge (now
Chief Judge of Imo State) that the only document a Court is
entitled to look at, when issue of statute bar or limitation
law is raised, is the writ of summons and/or Statement of
Claim filed by the Plaintiff. See the case of Egbe Vs
Adefarasin (1987) 1 NWLR (Pt.47) 1, wherein the
Supreme Court held:
“How does one determine the period of limitation?
The answer is simply by looking at the writ of
summons and the Statement of Claim alleging when
the wrong was committed which gave the Plaintiff a
cause of action and by comparing that date with the
date on which the writ of summons was filed.” This
can be
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done without taking oral evidence from witnesses.”
See also Ibrahim Vs Lawal & Ors (2015) LPELR –
24736 (SC); Aremo II Vs Adekanye & Ors (2004)
LPELR – 544 (SC).
The fact, whether or not a Suit is statute barred is never
considered on the facts pleaded by the Defendant in his
statement of defence or in his motion or address of Counsel
for that purpose, except those facts are expressly admitted
by the Plaintiff, to indicate the time the cause of action
accrued. See Moyosore Vs Gov. of Kwara State & Ors
(2012) 5 NWLR (Pt.293) 242; Nduka and Ors Vs Agbai
& Ors (2018) LPELR – 44270 CA. In the recent case of
First Bank of Nigeria Plc Vs Standard Polyplastic
Industries Ltd (2018) LPELR – 44081 CA, this Court
held:
“The Courts normally rely on the Writ of Summons
and/or Statement of Claim (Claimant’s pleading) to
determine whether or not a Suit is statute barred, and
it does this by reference to when the cause of action
arose (as pleaded by the claimant) and the time the
Claimant commenced action to claim his right. See
Ogboru Vs Uduaghan (2012) 11 NWLR (Pt.1311) 357;
Odubeko Vs Fowler (1993) 7 NWLR (Pt.308) 637.
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I have already reproduced the reliefs sought in the
statement of claim. I have also perused, closely, the Writ of
Summons and Claims by the 1st and 2nd Respondents. I
cannot see where they pleaded 1982 as the date the cause
of action accrued in this case. The paragraph 8 of the
pleadings of the Respondents, which Appellant sought to
rely and capitalize on appears to rather show how the 3rd
Respondent took a lease of the land in dispute from the 1st
Respondent in 1982, for 10 years – 1982 to 1992; and how
he later discovered that the 1st Appellant, who was
engaged by plaintiff in the matter defrauded him (plaintiff)
in drawing up the lease documents, claiming the land as his
(Appellant’s). That upon discovery of this fraud effort had
been made to cause the 3rd Respondent, (Unipetrol) to
know of the fraud by Appellant and correct the wrong.
Appellant, a lawyer, sought to invoke the rule of statute of
limitation to block the trial. I do not think that is proper.
Of course, even where a claim of limitation law is
successfully pleaded, the same cannot be sustained, where
fraud is alleged by the Plaintiff against the person
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seeking to rely on the plea of statute bar or limitation law.
The Court would have to take evidence, before it could
come to a proper decision in the circumstance. In the case
of Nwankwo & Anor Vs Nwankwo (2017) LPELR –
42832 CA, my lord Ogunwumiju said:
“Let us assume that the Respondent was a trustee of
the Estate in respect of specific property. The
circumstances under which the statute of limitation
would apply would be where there has been (sic)
concealment of fraud, or if the beneficiaries were not
aware of the fraud, then time does not begin to run
against them until the beneficiaries of the trust are
aware of the fraud.”
I agree with the trial Court, that this is a clear case that the
plea of statute bar cannot be invoked or sustained, in the
absence of evidence, since the allegation of 1982, as the
date/year the cause of action accrued, was the idea or
conjecture of Appellant, not suggested or admitted by the
1st and 2nd Respondents (Plaintiffs), in their pleadings.
The law is also well settled that a plea of statute of
limitation cannot apply where the injury complained of is a
continuing
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one, or where the statutory exceptions apply, such as fraud,
deliberate concealment by the defendant, or mistake.
See Nwankwo Vs Nwankwo (2017) LPELR – 4282;
Aremo II Vs Adekanye (2004) ALL FWLR (Pt.2240)
2113; Abiodun Vs A.G. Fed. (2007) 15 NWLR
(Pt.1057) 359.
It is also difficult, in my view, to contemplate a situation
where a plea of statute bar can apply against a person, who
leased his land for a term of years, in which case the right
of reversion or radical title is expected to remain in the
lessor, as long as the lease hold subsists. See Sterling
Plantation and Processing Co. Ltd Vs Agbosu & Ors
(2013) LPELR – 22146 CA; Archibong & Ors Vs Ita &
Ors (2004) LPELR – 535 (SC).
I find no merit in this appeal, and also resolve the Issue
against the Appellant, and dismiss the appeal, with
N50,000.00 against the Appellant, payable to the 1st and
2nd Respondents.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree with
the reasoning and conclusions reached by my learned
brother, Mbaba, J.C.A., in the leading judgment of this
Court just delivered by him, therefore, I abide by the orders
made therein.
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IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have read in
draft the judgment just delivered by my learned brother
Hon. Justice Ita George Mbaba JCA, and I am in complete
agreement with his reasoning and conclusion.
This is an appeal against the decision of the Imo State High
Court of Justice in Suit NO. HOW/166/2001, delivered by
Hon. Justice P. O. Nnadi J, (as he then was) on the 3rd day
of March, 2006. The judgment went in favour of the
claimant at the lower Court. The facts of this case have
been adequately treated by my learned brother, so I would
not waste time on them anymore. Suffice it to say by way of
emphasis that while the claimant brought an action at the
lower Court against the appellant and some other
defendants the appellant, apparently exploiting to his
advantage his standing and status as a legal practitioner
tried to twart or truncate the wheel of justice. The trial
Court has stated that in its judgment thus:
"I have considered the processes placed before this
Court and the submission of the learned counsel on
either side and hold that in so far as the grounds for
the preliminary objection are based on the averments
of the 1st Defendant in his Statement of
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Defense and these grounds not being apparent on the
statement of claim, which is the only process that can
be considered at this stage of exchange of pleadings...
the proof of which ought to be treated during the
hearing by evidence...."
The learned trial judge found that the averments dealing
with statute bar and issue of estoppel were raised in the
statement of defense of the appellant as first defendant.
There was no appeal against that finding. Again the
claimants, now the Respondents raised the issue of fraud
against the appellant at the lower Court.
These are enough reasons to have made the appellant not
to have embarked upon the exercise of raising a
preliminary objection. Yet just to clog the wheel of justice
and frustrate the case of the claimant, he proceeded and
filed a preliminary Objection. Of course the trial Court
rightly rejected that attempt with sound reasoning backed
up by the law. Still the appellant decided not to accept the
truth and reality on the ground and proceeded to file this
appeal before us.
I find no difficulty in agreeing with the trial Court that the
preliminary objection was unfounded.
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My learned bother I. G. Mbaba JCA has done justice to the
appeal. It is trite that it is the writ of summons and the
statement of claim that are used in determining or
considering the issue of statute bar or statute of limitation
as has been decided in EGBE VS. ADEFARASIN (1987) 1
NWLR (Pt. 47).
For the above reasons and fuller reasons of my Lord I. G.
Mbaba JCA, I find no merit in this appeal and I dismiss
same adopting the orders made in the lead judgment as
mine.
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Appearances:
Chukwuemeka Nnadi, Esq. (who settled thebriefsadopted by the Appellant) For Appellant(s)
I.P. Ananaba, Esq. (who adopted the brief settledby I .K. Ujah, Esq.) for the 1st and 2ndRespondentFor Respondent(s)
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